The Second Amendment Wedge

Hillary calls them, “kitchen table issues,” the political questions Americans take seriously enough to talk about them privately, in their homes, among family and friends. Whether she likes it or not, one of those issues is gun control.  Last week the Supreme Court decided to take on the biggest gun control case in almost seventy years:  District of Columbia v. Heller.  The Heller case is an appeal by the DC government from the US Circuit Court’s decision holding unconstitutional D.C.’s ban on privately-owned handguns and severe limits on other weapons. 

The Heller appeal will be argued next spring and unless something very odd happens, it will be decided before the election. This is very bad news for the Democrats who — like Hillary — don’t believe that the Second Amendment preserves for private citizens the right to keep and bear arms. 

The DC handgun ban provides that an unlicensed private person may not carry a pistol even from room to room in his own home.  Because DC — as a matter of policy — doesn’t grant handgun permits, the law effectively bans lawful handgun ownership.  It also requires that all other guns — shotguns and rifles — be registered and kept either unloaded and disassembled or locked with a trigger lock.  In either case, the weapon is useless for self-defense because an assailant isn’t likely to stand by waiting patiently while you search for the key or put your shotgun together in order to protect yourself from him.

It’s been almost seventy years since the Supreme Court last ruled on the very basic principle embodied in the Second Amendment: the right to keep and bear arms.  The 1939 decision in Miller v. US confused the law. 

Reacting to the interstate gangs of the 1930s that preyed on the public (and their banks: think Dillinger, Bonnie and Clyde and their ilk) Congress regulated private possession of the gangs’ favorite tools of mayhem: machine guns, suppressed (silenced) weapons and sawed-off shotguns.  Miller and his co-defendant were convicted of crossing state lines with a sawed-off shotgun in violation of the new law. 

In 1939, the Supreme Court ruled that the Miller convictions were proper because the sawed-off shotgun was not a weapon that would be of use to a militiaman:  “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”  But following that logic — and given the armament most common among the modern militia, the National Guard, is the M-16 rifle which is capable of fully-automatic fire — the Miller case is at best a limited guide for the Supreme Court in the DC v. Heller appeal. 

Though you may as well reason that the freedom from unreasonable search and seizure applies only to homes that were built by 1781, the fact is that officers of some states’ militias were required to equip themselves with a brace of pistols.

The Heller case raises the precise issue that liberals fear most:  the private rights of individuals.  The DC Circuit’s opinion rejects the District of Columbia government’s argument that the Second Amendment grants only a collective right: that the states have the right to arm their militias, but no private citizen has a right to keep a firearm.  It will be very tough to overcome the DC Circuit’s reasoning for two big reasons.

First, as the Supreme Court held in 1840, there’s not a surplus word in the Constitution.  “Every word must have its due force and appropriate meaning…no word was unnecessarily used or needlessly added.”  The Second Amendment says, “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.” There are no useless words here.  Every one is key to the force and effect of the Second Amendment. That Amendment, when it speaks of “the people” must be read in concert with the rest of the Constitution, the Bill of Rights and their history.

No one contends that the other Amendments that preserve rights of “the people” — the First, Fourth, Ninth and Tenth — do not preserve individuals’ rights.  The same must be true of the Second.

Moreover, the Federalist Papers — as the DC Circuit analyzes — reveal that the Founders believed in the right of the individual to keep his own firearms.  Neither the Federalists nor the Anti-Federalists believed the federal government had the power to disarm the people.

The second reason the Heller case will be tough to overturn is in the Fourteenth Amendment which precludes states from passing laws that abridge the privileges and immunities of citizens granted under the Constitution.  The courts haven’t yet decided that the Fourteenth Amendment precludes gun control laws such as the District of Columbia’s, but the Heller case may make that result unavoidable, thus overturning those laws around the nation.

If the Republicans seize this opportunity, they can make a “kitchen table” issue into a “wedge issue” in 2008: one that will decide the minds of voters.  One Republican — Mitt Romney — has spoken on this precise point.  In his interview with HUMAN EVENTS, Romney said his personal view was that the Second Amendment preserves individuals’ right to keep and bear arms.  No Democrat will say that. 

In Hillary Clinton’s book, “Living History,” she writes about her outrage at Congress’ failure to, “…close the so-called gun-show loophole and to require child safety locks on guns.”  She goes on talking about how Congress lacked the will to, “…buck the all-powerful gun lobby and pass sensible gun safety measures [which] made me think about what I might be able to do, as a senator, to pass common sense legislation. In an interview in May, I told CBS anchor Dan Rather that, if I ran for the Senate, it would be because of what I learned in places like Littleton — and in spite of what I had lived through in Washington.”

Clinton never did anything about gun control as a senator.  What would she do as president?  Does she believe that the Second Amendment gives individuals the right to keep and bear arms, or does she favor confiscative laws such as the District of Columbia law the Supreme Court will rule on in the Heller case? 

We know the answer. But it’s up to the Republican candidates to flush her out of the tall weeds. This is an important issue to a great majority of Americans across the map, in Blue States, not just Red ones.  It could be the wedge issue that decides the 2008 election.