Saturday, April 26, 2008

District of Columbia v. Heller

Last month, the U.S. Supreme Court began hearing arguments in District of Columbia v. Heller, a case that challenges the District’s handgun ban. The case began when the District denied permission to Dick Heller, a security guard who carries a handgun at work, from having a permit to keep a handgun in his home. The case reached the Supreme Court after the D.C. Circuit Court of Appeals ruled that the D.C. handgun ban was unconstitutional(1).

This is, of course, a Second Amendment issue. The District’s arguments for their ban (and indeed the arguments in general for gun control advocacy) include the following: 1) the Second Amendment applies only to militia – it is a collective right for militias and not an individual right; 2) the Second Amendment applies only to the federal government and only prevents the federal government from interfering with gun rights (a view held by the U.S. Supreme Court in Presser v. Illinois [1886](2); and 3) the concept of the Second Amendment is no longer relevant to life in the U.S. in the 21st century as it was in the 18th. No longer do we defend our nation with, predominantly, civilian militias; No longer is it possible for the average citizen to protect his rights from government with personal arms; and the proliferation of arms on our streets has made us unsafe.(3)

The argument that the Second Amendment does not apply to the District is the easiest to dispense with. Although it is true that initially the limitations on government power enumerated in the Constitution and Bill of Rights were meant to apply only to the federal government and not the states, the District is not a state and ultimately its governance is the responsibility of the federal government. Furthermore, the, “equal protection,” clause of the 14th Amendment has been interpreted, since 1897, to place the states under the same limitations of the Bill of Rights as the federal government.(3)

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,” (emphasis added). The clearest part of this amendment is the last phrase. Whatever right is being conferred, it is quite clear that the government is not permitted, to put any restrictions on it whatsoever! The argument is whether this right is granted to individuals or whether this right is granted only to organized militias. Some argue that the first clause is a precondition for the right that follows, that the right exists only for the militias as a collective right. Indeed, the Supreme Court itself made this argument in United States v. Miller [1939](2). In my view, this reading ignores the grammatical conventions of the English language. In English, the preamble before the second comma is known as a dependent clause. It is it that is dependent on what comes next – the right of individuals to keep and bear arms. If individuals do not maintain this right, they cannot form the militias that the Founding Fathers deemed necessary for our national defense. Furthermore, the independent clause assigns this right to the people. The word militia is not used to describe to whom this right pertains. The word, “people,” is used in other places in the Constitution, specifically in the Tenth Amendment, clearly to denote individual rights. Clearly if the Framers chose the same word for the Second Amendment (and did not substitute, “the right of the militias to keep and bear arms…”), they intended it to convey the same meaning.

The argument that the Second Amendment meant to convey gun rights to individuals is not merely a semantic one. It is pretty clear from the writings of the Framers that they intended for individuals to have the right to bear arms. Although he opposed the concept of a Bill of Rights, Hamilton envisioned our national defense maintained by a small core standing army and militia composed of, “the people at large…properly armed.”(4) In other words militia are the ordinary citizens who keep their own arms and can be called into action, “in a minute’s notice,” for U.S. defense. Madison went further to describe that an armed citizenry would be a protection against any attempt of the federal government to usurp our liberty through the use of a standing army, “To these would be opposed a militia amounting to near half a million citizens with arms in their hands…fighting for their common liberties…”(5) In other words, another intent of the Second Amendment is to allow individuals to keep and bear arms so the government itself cannot take their rights by force. George Mason observed that, “to disarm the people,” was, “the best and most effective way to enslave them.”(6) Pertaining specifically to the crafting of the Second Amendment, Samuel Adams argued in favour of a Bill of Rights so that, amongst other things, the, “Constitution shall never be construed…to prevent the people of the United States who are peaceable citizens from keeping their own arms.”(7) The relationship between the individual right to bear arms and the militia was established in the Militia Act of 1792. This act defined militia as able-bodied free men who were then required to possess their own arms and minimum supply of ammunition.(8)

But the real question is, why do we care what the 18th century intent of the Second Amendment was? What relevance does it possibly have to the 21st century? The compelling case for gun control laws is not that the Second Amendment means something different than what it really means, but rather that circumstances have changed since 1791 and we need gun laws more appropriate for 2008. Although the Second Amendment confers the right to bear arms to individuals, the need to have an armed citizenry has vanished. No longer is our defense based on able-bodied, gun owning citizen militias. Rather, we now have a powerful standing army that is the most powerful fighting force in the history of planet. The right is an anachronism. The unstated intent of some Founders that the right to bear arms would serve as a mechanism for armed resistance to the government, if necessary, is equally ridiculous in 2008. Clearly private citizen gun owners can never be a match for the might and advanced weaponry of the United States military. Sure many citizens use guns for hunting and most people don’t advocate restricting those rights, but what about handguns, or assault weapons, whose sole purpose is to shoot other people? Isn’t there a case to be made that no one needs weapons like that? Even if you advocate gun ownership for self-defense, isn’t that issue one that can be debated rather than accept the 18th century notion that no infringement on gun ownership is permitted? If there are compelling reasons in urban centers, such as Washington, D.C., why gun laws need to be strict for public safety, shouldn’t those centers be allowed to set their laws as they see fit and leave rural states to their less restrictive laws? Over the decades, culminating with U.S. v. Miller, there has been considerable case precedent allowing for this differing interpretation of the Second Amendment as the conditions in the country have made the original intent less and less relevant.(2)

Although many gun rights advocates present data supporting the benefits of private gun ownership and concealed-carry laws; statistics from the Centers for Disease Control, the National Rifle Association, and the Brady Campaign to Prevent Gun Violence, show that states with less restrictive concealed-carry laws have higher mortality rates.(9) Furthermore, of the 30,694 gun deaths in the U.S. in 2005, only a little more than a third, 12,352, were actually homicides. Of the remainder 17,002 were suicides and 1,340 were accidental or police-related shootings.(9) Far from protecting ourselves with handguns, we are killing ourselves with handguns. Indeed, the presence of a gun in the home is an independent risk factor for subsequent homicide in the home.(10) There is also evidence that gun laws do make us safer. A 1991 study of the 1976 D.C. handgun ban at issue in D.C. v. Heller demonstrated that homicide rates declined by 25% and suicide rates by 23% after the law was implemented.(11)

I am not a gun owner, nor an NRA member. I have never been hunting and the sum total of my experience with guns was my great-grandfather showing me how to shoot a .22 when I stayed with him for a week the summer of my 10th birthday. Although I don’t hunt personally, I don’t begrudge others who enjoy the activity. Certainly I wouldn’t favour any laws that would restrict the ownership of weapons used for sport. But, I have to admit, I am convinced by many of the arguments of those who would draw distinction between guns used for hunting and guns that are really only used to kill other people. I agree that the reasons for the individual right to bear arms stated over 200 years ago are either outdated or irrelevant today, for the reasons discussed above. Although gun rights advocates always quote their own statistics about how gun ownership reduces crime, I must acknowledge that the New England Journal of Medicine is a reputable, peer-reviewed journal and the data I have quoted from it is compelling. In my view, it just makes sense that there should be some middle ground policy that can protect citizens from gun violence in places where it is endemic and protect gun ownership where it is not. It seems to be common sense that some weapons don’t need to be legal to own, although I would never favour a complete gun ban.

So why shouldn’t D.C. have a handgun ban that clearly protects residents of District? Why shouldn’t the Supreme Court uphold its previous ruling in U.S. v. Miller, uphold the D.C. handgun ban, and overrule the appellate court? There is an important reason not to do so. There is an important principle of liberty to protect. It does not matter if the D.C. handgun ban is good policy and it does not matter if the original legislative intent of the authors of the Bill of Rights is now woefully outdated and irrelevant. What matters is that their intent, as detailed above, is clear and is part of the Constitution – the supreme law of our land. We must remain wary of laws and precedents that circumvent the Constitution, for it is the limits that the Constitution sets on our government that ultimately protect our liberties. After the Constitutional Convention, when the Hamilton, Jay, and Madison were writing what we now term the Federalist Papers to persuade the country to ratify the new Constitution, there was great debate over whether it should be ratified without a Bill of Rights, or not. Hamilton argued that a Bill of Rights was unnecessary.(12) Hamilton argued that the limits the Constitution set on the powers of government and the checks and balances established among the branches of government would protect the liberties of the citizens without need for an enumerated Bill of Rights. Jefferson, on the other hand, wrote Madison from France to argue that a Bill of Rights be included.(13) In this view, some rights are so important that they must be enumerated so that it is crystal clear that the government never has the authority to limit them. As Jefferson put it, “…a bill of rights is what the people are entitled to against every government on earth…”(13) We have already seen that Samuel Adams argued that the Constitution should not be ratified without a Bill of Rights that included a protection of the right to bear arms, however he also advocated that it include protections of press and religious freedom as well.(7) This is the important point. We may concede that the individual right to keep and bear arms is antiquated, but most of us still view the Constitution’s protections of free speech, free press, free assembly and religious freedom; due process and jury trial; and protection against search and seizure to be as relevant in the 21st century as they were in the 18th. Gun control laws such as the D.C. handgun ban, that run contrary to the meaning and intent of the Second Amendment, and the case precedents that have upheld them, provide the legal framework for circumventing the Bill of Rights. If we allow such tactics to be used to undermine Second Amendment rights, then how can we stop their use to undermine other provisions of the Bill of Rights as well? One could argue that the fact that the other enumerated rights are still relevant will protect them as the majority view remains that those rights should be protected. However the Bill of Rights exists not to protect the majority, but to protect the minority, including the smallest minority, the individual. The whole point of enshrining these rights in our Constitution is so they cannot be altered by a simple majority, but rather require 2/3 of Congress and ratification by ¾ of the states. If you believe that our other freedoms can’t be undermined in this way, what about the assaults on liberty in the USA-PATRIOT Act, or invasion of our privacy by the warrant-less wiretapping that few people seem upset about?

This is the age-old argument between constructionists and leftists. Does the Constitution mean what is says, or is it a, “living document,” the meaning of which changes with circumstances from one generation to the next? I have alluded to the process of amendment of the Constitution. This is the remedy the Framers provided for changing the Constitution as required when the circumstances of the nation changed. In my view, the fact that an amendment process was included not only reveals that the Framers were aware that their priorities might not be the priorities of future generations, but also implies that the Constitution is meant to be read as the strict, immutable supreme law of the land, unless it has been changed through the process of amendment. If we as a society, in the 21st century, have moved beyond the 18th century notion of an individual right to bear arms that, shall not be infringed, and wish to have gun laws allowing for stricter regulation of guns (at least in certain parts of the country) then we should avail ourselves of the prescribed remedy and amend the Constitution so that it no longer protects such a broad individual right to keep arms. Only in this way can we pass gun control laws without setting statutory and common law precedents that could be used to undermine other liberties protected by the Bill of the Rights. I am not opposed to gun control per se, but only if it is done in a way that protects our other liberties, rather than threatens to undermine them – only if it is done through Constitutional amendment. It is for this reason that I fervently hope the U.S. Supreme Court will uphold the appellate court ruling, overturn U.S. v. Miller, and thus reestablish precedent for the respect of the Constitution that will protect our other liberties.



1 Barnes R, “Justices to Rule on D.C. Gun Ban,” The Washington Post. November 21, 2007. p. A01.

2 Tushnet M, “Interpreting the Right to Bear Arms – Gun Regulation and Constitutional Law,” The New England Journal of Medicine. 358(14): 1424 -1426.

3 Levy RA, “The D.C. Gun Ban: Supreme Court Preview,” Legal Times. September 24, 2007.

4 Hamilton A, The Federalist, #29.

5 Madison J, The Federalist, #46.

6 Debates and other Proceedings of the Convention of Virginia, . . . taken in shorthand by David Robertson of Petersburg, at 271, 275 (2nd ed. Richmond, 1805).

7 Debates and Proceeding at the Convention of the Commonwealth of Massachusetts, at 86-87 (Pierce & Hale, eds., Boston, 1850); 2 B. Schwartz, the Bill of Rights 675 (1971).

8 Act of May 8, 1792; Second Cong., First Session, ch. 33.

9 Wintemute G, “Guns, Fear, the Constitution, and the Public’s Health,” The New England Journal of Medicine 358(14): 1421-1424.

10 Kellerman AL, Rivara FP, Rushforth NB, et. al., “Gun Ownership as a Risk Factor for Homicide in the Home,” The New England Journal of Medicine. 329(15): 1084-1091.

11 Loftin C, McDowall D, Wiersema B, and Cottey TJ, “Effects of Restrictive Licensing of Handguns on Homicide and Suicide in the District of Columbia,” The New England Journal of Medicine. 325(23): 1615-1620.

12 Hamilton A, The Federalist, #84.

13 Jefferson T, Letter to James Madison, December 20, 1787.

1 comment:

J said...

I agree with your well-written essay, Jim. There are many examples of difficult issues that, like the limits on governmental regulation of gun ownership, we hesitate to address directly, instead arguing ourselves into contortions.

Abortion, as a federal constitutional issue, is an obvious example. If we feel that the constitution should protect this right specifically, we should amended it accordingly. Alternatively, if we feel that the bill of rights does not sufficiently protect a wider array of civil liberties (prostitution, recreational drug use, gambling, etc.) then we should broaden their scope.

"Brain death" is another example. We've avoided the difficult questions of when it's ok to discontinue mechanical ventilation, harvest organs for transplantation, or bury a person. Instead, we cling to the notion that we can only do that when someone is dead, and then proceed to redefine the meaning of death! Not to get too far off topic, but close examination of the construct of "brain death" reveals serious flaws.

In essence, we should say what we mean, and mean what we say.