Showdown at the Constitution's Last Frontier

Most presidential elections contain an issue that acts as a third gunman, ultimately stacking the odds against one of the main two combatants.  It was Iraq in 2004, ethics in 2000, the economy in 1992, and so forth.  Last Friday, the 2008 election may have found its third gunman with a court decision that, somewhat appropriately, also sets out an important marker on one of the last untamed frontiers of constitutional law.

In Parker v. District of Columbia, the United States Court of Appeals for the District of Columbia Circuit struck down portions of D.C.’s strict gun control laws, becoming the first federal appellate court to strike down a law under the 2nd Amendment.  In so doing, the D.C. Circuit set down an important opinion in the debate over the scope of the 2nd Amendment’s right to keep and bear arms.

The 2nd Amendment’s text offers little to guide this debate; it reads as if two separate sentences were glued together without thought to the overall meaning:  “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.”  Nor is Supreme Court jurisprudence helpful.  The Supreme Court has never revisited its 19th Century holdings that the 2nd Amendment does not apply to the states, so 2nd Amendment cases are few and far between. 

Thus, it was not until post-New Deal Congresses began to enact federal laws regulating firearms that there was much need for scholars and courts to consider the meaning of the oddly worded amendment.  Even then, only a single Supreme Court decision directly interprets the amendment, and that opinion — which upheld a conviction for possessing an unlicensed sawed-off shotgun — is arguably confined to its facts for technical reasons beyond the scope of this column. 

What scholarship and appellate law exists initially embraced what is now called the “collective rights” model.  Under this model, the first phrase of the amendment controls, and the amendment merely stands for the proposition that the federal government may not disband militias.  Modern scholarship has increasingly embraced the “individual rights” model, which views the 2nd Amendment as granting individuals a right to own guns, which makes gun control laws much harder to justify.  Adherents to this view cut across the political spectrum, and include staunch liberals such as Laurence Tribe.

This latter interpretation was purely theoretical until 2001, when the Fifth Circuit became the first federal appellate court to embrace the “individual rights” model in Emerson v. United States (although it found the statute at issue did not impinge upon those individual rights).  Last Friday’s opinion in Parker goes a step further, and actually invalidates a law for violating those rights.

The District of Columbia has some of the nation’s most draconian gun control laws – among other things, they prohibit owning a handgun and force legal guns to be kept disassembled.  Four residents of the district challenged these laws, alleging that citizens were entitled to own handguns and keep them assembled in their homes for purposes of self-defense.

Judge Laurence Silberman authored a lengthy opinion that considered the Supreme Court’s precedent, as well as the history and text of the amendment.  The court concluded that the “collective rights” approach was a “strained” interpretation of the amendment, and held that “the 2nd Amendment protects an individual right to keep and bear arms.”  It rejected the district’s argument that handguns were not related to militia activity, struck down the handgun ban, and invalidated the requirement that guns be kept disassembled, along with a few other restrictions challenged by the plaintiffs.

The case will most likely eventually be appealed to the Supreme Court of the United States, where its prospects are unclear.  The court has avoided granting writs of certiorari in 2nd Amendment cases before.  In 2002 it refused to grant a petition for writ of certiorari in the Emerson case.  A year later, it refused to review a Ninth Circuit opinion by Judge Stephen Reinhardt which specifically took issue with Emerson.

But this case may be different.  The Supreme Court usually prefers to allow issues to percolate through different courts of appeals and will often avoid the first case raising an important issue, which may be why it did not take up Emerson.  It also prefers “clean” cases that cannot be dismissed on independent grounds; the plaintiffs in the Ninth Circuit case also lacked standing to challenge the law, which may explain why the Court passed there.  As a later case with minimal alternative issues, the court may be more inclined to take up Parker, though Judge Karen Henderson did dissent there because she believed the 2nd Amendment does not apply to the District of Columbia.  The Supreme Court may yet shy away from reviewing Parker because of concerns regarding this “technicality.”

How the high court would rule if it does take the case is a mystery.  Justice Clarence Thomas has authored dicta which seem to embrace the individual rights model, but other than that, the justices are writing upon a largely blank slate.  This issue cuts across ideological lines; while “liberalism” is generally supportive of gun control, it is also generally supportive of expansive interpretations of the Bill of Rights.  Similarly, conservative justices who generally oppose broad interpretations of the U.S. Constitution may be persuaded by the lengthy history supporting the individual rights approach.

Which brings us to 2008.  The most immediate impact of Parker will likely be felt in presidential politics.  The Democrats made progress in rural areas 2006 by shying away from gun control.  Similarly, Republicans hope to re-gain ground among suburbanites by nominating a candidate who can speak to metropolitan areas.  If the Court takes up Parker, its decision may well come down in the summer of 2008, re-driving the wedge between Democrats and rural American and Republicans and the suburbs.  If it does not go up, candidates will still be forced to take a stand on the decision.  Either way, gun control will likely play an important part in the 2008 election.  That is appropriate, as the next President’s appointees will play a critical role in shaping this last frontier of constitutional law.